- The Criminal Justice Act 1988 relinquished its statutory rights in favour of the Proceeds of Crime Act 2002 [POCA 2002] on the 24 March 2003 [S.I.2003 no.33] when the said provisions were brought into force albeit POCA 2002 received Royal Assent on 24 July 2002.
- POCA 2002 is divided into 12 parts consisting of over 460 sections and 12 schedules. Part 2 concerns confiscation orders in criminal proceedings.
- Contained within POCA 2002 there is not a single word of ‘Hidden Assets’ De Jure and De Facto.
- For the purpose of this opinion, the relevant legislation for “default” sentences can be found in POCA 2002 s.38.
- Since 2003 it had always been settled and accepted view that provisions about imprisonment or detention in default or discharging a valid confiscation order must always be consecutive to the Index Sentence served.
- The ‘settled’ and ‘accepted’ position is a fallacy, and there is no statutory duty to impose a consecutive sentence for reasons clearly set out in the Legislation.
- The governing section within POCA 2002 imposing duties for default sentences is found – as states – in s.38 and the relevant subsection is (2) which states:
“In such a case the term of imprisonment or of detention under s.108 of the Powers of Criminal Courts (sentence) Act (detention of persons aged 18 to 20 for default) to be served in default of payment of the amount due not begin to run until after the term mentioned in subsection (1) (b).”
- Practitioners for almost 20 years have erred in accepting that the word “after” to mean “consecutive”. By taking such a wrong turn in the application of the law has – per se – failed not only the Statute but of nature justice itself.
- Had practitioners carefully scrutinised the legislation and supporting statutes it would have been properly directed and such clear-cut direction can be found in the Powers of the Criminal Courts (sentencing Act 2000 s.139 (5) [PCCS 2000]:
“Where any person liable for the payment of a fine or a sum under recognizance to which this sentence applies is sentenced by the Court to, or is serving or otherwise liable to serve, a term of imprisonment or a term of detention under s.108, the court may order that detention in a young offender institution or a term of detention under s.108, the court may order that any term of imprisonment or detention shall not begin to run until after the first-mentioned term”.
- To use in the statute of the word “may” is discretionary, not mandatory.
- For far too long practitioners and the judiciary have taken a wrong turn in the application of the law.
- There has been a serious premature adjudication and interpretation presuming to impose a statutory duty to impose a consecutive sentence when clearly no such statutory duty exists.
- It may well be the case that in the majority of cases a consecutive sentence is the correct approach. However, there remains the fact that such an approach remains a discretion and not a duty.
- Any detainee who has received a default sentence on the basis that the judiciary failed to consider the application of discretion, or where within the sentence remarks there is no mention of such discretion, should accordingly consider an appeal to the Court of Appeal Criminal Division.
- Where a detainee is unable to pay a default, the sentence becomes arbitrary detention. The distinction between unable to pay and refusing to pay is to be distinguished.
- A detainee who is unable to pay may well find some comfort in the 4th Protocol of the European Convention on Human Rights (Strasbourg, September 16, 1963, Art 1:
“Prohibition of imprisonment for debt”.
“No one shall be deprived of his liberty merely on the grounds of inability to fulfil a contractual obligation”.
- All countries within the Council of Europe (to be distinguished from the European Union) must abide by the ECHR and as founding members of the Council of Europe, the United Kingdom is bound by international law and Treaty to comply.
- For all the above reasons there is, never has been, any statutory duty to impose a consecutive sentence for any default sentence within the confiscation regime and further, if upon discovery and enquiry a Court finds that any detainee with s.258 of the Criminal Justice Act 2003 is unable to pay a confiscation order as opposed to refusing/unwilling to pay any detention suffered and/or continuous becomes arbitrary and the most serious breach of law and duty.
Giovanni Di Stefano
24 April 2021